Yarbrough v. State ( 2020 )

NOT DESIGNATED FOR PUBLICATION
No. 122,077
IN THE COURT OF APPEALS OF THE STATE OF KANSAS
DAVID YARBROUGH,
Appellant,
v.
STATE OF KANSAS,
Appellee.
MEMORANDUM OPINION
Appeal from Wyandotte District Court; WESLEY K. GRIFFIN, judge. Opinion filed September 25,
2020. Affirmed.
Joseph A. Desch, of Law Office of Joseph A. Desch, of Topeka, for appellant.
Daniel G. Obermeier, assistant district attorney, Mark A. Dupree Sr., district attorney, Derek
Schmidt, attorney general, for appellee.
Before WARNER, P.J., STANDRIDGE and GARDNER, JJ.
PER CURIAM: David Yarbrough was convicted in 2011 of multiple sexual crimes.
In 2014, Yarbrough filed a timely pro se K.S.A. 60-1507 motion with the district court.
Nearly three years later, his counsel filed an amended motion that raised the new claim
that Yarbrough was incompetent to stand trial and that his trial counsel was ineffective
for not having raised that issue. The district court held a hearing at which Yarbrough
presented evidence that he had a low IQ. The district court denied Yarbrough's
competency claims as untimely and insufficient. Yarbrough appeals, but we find no
reversible error.
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Factual and Procedural Background
In 2011, the State charged David Yarbrough with 19 counts, including three
counts of rape, four counts of aggravated indecent liberties with a child, two counts of
attempted aggravated indecent liberties with a child, eight counts of aggravated criminal
sodomy, and two counts of attempted aggravated criminal sodomy. He allegedly
molested his step-granddaughter when she was less than 14 years old. See State v.
Yarbrough, No. 108,096, 2013 WL 3791793, at *1-5 (Kan. App. 2013) (unpublished
opinion). Yarbrough testified in his own defense at trial. But the jury convicted him of
three counts of rape, four counts of aggravated indecent liberties with a child, and eight
counts of aggravated criminal sodomy.
After his convictions, Yarbrough appealed, this court affirmed the district court,
and our Supreme Court denied review. See Yarbrough, 2013 WL 3791793. Yarbrough
then petitioned for a writ of certiorari, which the United States Supreme Court denied.
Yarbrough v. Kansas, 574 U.S. 836 (2014).
In September 2014, Yarbrough filed a pro se K.S.A. 60-1507 motion with the
district court. In January, February, and August 2015, and March 2016, Yarbrough filed
pro se addendums to that motion, raising some new claims and supplementing others.
Yarbrough alleged multiple errors by the district court, by counsel, and by the State, none
of which are at issue on appeal. None of his many claims alleged that he was
incompetent.
Over five years after his trial, Yarbrough first alleged that he was incompetent to
stand trial. He did so by an amended motion filed in July 2017 by his counsel, William
Dunn. That motion raised two new claims:
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(1) Yarbrough's trial counsel, W. Fredrick Zimmerman, was ineffective
because he "did not investigate or present the proposition that Mr. Yarbrough was
incompetent to stand trial or be sentenced" and
(2) Yarbrough was not competent to stand trial.
In support, Dunn attached a psychiatric assessment that showed Yarbrough had an IQ of
57 when tested in May 2017 and a "mild intellectual disability."
At the hearing on this motion, held March 2018, Yarbrough presented a single
witness—Jill Weippert, the mental health clinical supervisor for the El Dorado
Correctional Facility and its Oswego satellite. She testified that her staff had performed
the Wechsler Abbreviated Scale of Intelligence, second edition, test on Yarbrough in
May 2017. The results showed that 99 percent of individuals Yarbrough's age scored
better than he and that he had an intellectual disability. Weippert admitted that she could
not, however, offer an opinion on whether Yarbrough was legally competent to stand trial
because she does not perform competency evaluations and had not been trained in that
area.
In a written order, the district court summarily denied Yarbrough's pro se claims.
As to the competency claims that Dunn raised, the district court ruled that they were
untimely because they were filed outside the one-year time limit for K.S.A. 60-1507
motions, citing Pabst v. State, 287 Kan. 1, 21-27, 192 P.3d 630 (2008), and Thompson v.
State, 293 Kan. 704, 709-14, 270 P.3d 1089 (2011). Under Thompson, counsel must seek
leave to amend a motion, yet Dunn had failed to do so. And under K.S.A. 2019 Supp. 60-
215(c)(2), claims relate back to another motion when they arise out of the same conduct,
transaction, or occurrence. The new competency claims did not meet that test. Because
the competency claims were filed in June 2017, more than one year after the October 14,
2014 triggering date (the date the United States Supreme Court denied the petition for a
writ of certiorari), the court found them untimely. See K.S.A. 2019 Supp. 60-1507(f).
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But the district court also determined that the competency claims failed on the
merits. It found that Yarbrough's expert provided no opinion on his competency and that
Yarbrough failed to present evidence that he was incompetent during the trial. The
district court also found it curious that neither party sought testimony from Yarbrough's
trial attorney, who could have shared his opinion about his competency.
Yarbrough timely appeals.
Did the District Court Err in Finding Yarbrough's K.S.A. 60-1507 Competency Claims
Untimely?
On appeal, Yarbrough asserts that the district court erred in finding his motion
untimely. The State does not address this argument. Instead, it briefs solely the court's
finding that no evidence showed Yarbrough was incompetent at the time of trial. Based
on the State's abandonment of the untimeliness issue, we consider Yarbrough's motion as
if it had been timely filed. See State v. Salary, 309 Kan. 479, 481, 437 P.3d 953 (2019)
(we consider issues not adequately briefed to be waived or abandoned). We thus address
the merits, as did the district court.
Did the District Court Err in Denying Yarbrough's K.S.A. 60-1507 Competency Claims?
Yarbrough argues that, once he placed competency at issue in his K.S.A. 60-1507
motion, the district court had a duty to determine whether a retrospective competency
evaluation was feasible. But he also claims that he was incompetent to stand trial. He thus
raises both procedural and substantive competency claims. See State v. Woods, 301 Kan.
852, 858, 348 P.3d 583 (2015).
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Standard of Review
The district court held an evidentiary hearing on Yarbrough's K.S.A. 60-1507
motion and issued findings of fact and conclusions of law on all issues presented. We
review the findings of fact to determine whether they are supported by substantial
competent evidence and are enough to support the court's conclusions of law. Fuller v.
State, 303 Kan. 478, 485, 363 P.3d 373 (2015). But we use an abuse of discretion
standard in reviewing a district court's failure to order sua sponte an evaluation of a
defendant to determine his competency. State v. Marshall, 303 Kan. 438, 447, 362 P.3d
587 (2015). "Judicial discretion can be abused in three ways: (1) if no reasonable person
would have taken the view adopted by the trial court; (2) if the judicial action is based on
an error of law; or (3) if the judicial action is based on an error of fact." State v. Mosher,
299 Kan. 1, 3, 319 P.3d 1253 (2014).
General legal principles about competency
"[T]he criminal trial of an incompetent defendant violates due process." Medina v.
California, 505 U.S. 437, 453, 112 S. Ct. 2572, 120 L. Ed. 2d 353 (1992). Competence is
defined by statute. State v. Shopteese, 283 Kan. 331, 341, 153 P.3d 1208 (2007). A
defendant is incompetent to stand trial when he is charged with a crime and, because of
mental illness or defect, is (1) unable to understand the nature and purpose of the
proceedings or (2) cannot make or assist in making his defense. K.S.A. 22-3301(1).
"'[I]f the accused is capable of understanding the nature and object of the proceedings
going on against him; if he rightly comprehends his own condition with reference to such
proceedings, and can conduct his defense in a rational manner, he is, for the purpose of
being tried, to be deemed sane, although on some other subject his mind may be deranged
or unsound.' [Citation omitted.]" Van Dusen v. State, 197 Kan. 718, 722-23, 421 P.2d 197(1966).
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See State v. Barnes, 293 Kan. 240, 256, 262 P.3d 297 (2011) (same); see also Dusky v.
United States, 362 U.S. 402, 402, 80 S. Ct. 788, 4 L. Ed. 2d 824 (1960) (stating
constitutional standard is whether the defendant has sufficient present ability to consult
with his or her lawyer with a reasonable degree of rational understanding and a rational
as well as factual understanding of the proceedings against him or her).
The court presumes a defendant is competent to stand trial. State v. Stewart, 306
Kan. 237, 252, 393 P.3d 1031 (2017). When a defendant raises competency, the
defendant bears the burden of proving incompetence by a preponderance of the evidence.
Stewart, 306 Kan. at 252. See Medina, 505 U.S. at 449 (finding that a State may presume
that the defendant is competent and require him or her to shoulder the burden of proving
his or her incompetence by a preponderance of the evidence). But "[a] defendant is not
incompetent to stand trial simply because that individual has received or needs
psychiatric treatment." State v. Harkness, 252 Kan. 510, 516, 847 P.2d 1191 (1993). Nor
does a low IQ, standing alone, render a person incompetent to stand trial. Stewart, 306
Kan. at 259-60.
"The failure to hold a competency hearing, when 'evidence raises a bona fide
doubt as to defendant's competency, is a denial of due process.'" State v. Foster, 290 Kan.
696, 704, 233 P.3d 265 (2010). If the judge has reason to believe the defendant is
incompetent during the criminal proceeding, the judge must suspend the proceedings and
hold a competency hearing. See K.S.A. 2019 Supp. 22-3302(1). Under that statute, a
district court judge has a duty to inquire into a defendant's competency should the
circumstances warrant:
"(1) At any time after the defendant has been charged with a crime and before
pronouncement of sentence, the defendant, the defendant's counsel or the prosecuting
attorney may request a determination of the defendant's competency to stand trial. If,
upon the request of either party or upon the judge's own knowledge and observation, the
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judge before whom the case is pending finds that there is reason to believe that the
defendant is incompetent to stand trial the proceedings shall be suspended and a hearing
conducted to determine the competency of the defendant." K.S.A. 2019 Supp. 22-
3302(1).
The District Court Did Not Err in Not Holding a Competency Hearing.
We first examine Yarbrough's procedural claim that the district court should have
held a competency hearing. But no one raised Yarbrough's competency to stand trial at
any time when his case was pending—after he had been charged and before the
pronouncement of his sentence in 2011. And no one filed a competency motion. His July
2017 amended K.S.A. 60-1507 motion was the first anyone mentioned the issue.
Yarbrough contends that after he placed competency at issue in 2017, "the district
court had an obligation to pursue an appropriate competency proceeding if such a
determination would be feasible." To support his argument, Yarbrough relies on State v.
Ford, 302 Kan. 455, 353 P.3d 1143 (2015). Ford held that a meaningful retrospective
competency hearing was feasible and could remedy the district court's failure to comply
with K.S.A. 22-3302. 302 Kan. 455, Syl. ¶ 7.
In Ford, the defendant, after being charged but before being sentenced, filed a
motion under K.S.A. 22-3302 to determine his competency. The district court granted
that motion then received an evaluation showing Ford was competent. But the district
court failed to hold a competency hearing as required by K.S.A. 22-3302, before Ford
pleaded. In a collateral attack, Ford challenged his conviction because he did not have a
competency hearing.
The Kansas Supreme Court reasoned that to prevent summarily dismissal, Ford
had to establish "from the record or other evidence, that there was a reason to believe he
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was incompetent to stand trial and a reason to believe the requirements of K.S.A. 22-
3302 had not been satisfied." Ford, 302 Kan. at 468 (applying the same initial burden in
Ford's motion to correct an illegal sentence as if he had filed a motion under K.S.A. 60-
1507). Our Supreme Court reviewed the record and found that the district court had
ordered a competency evaluation yet had failed to hold a competency hearing, in
violation of K.S.A. 22-3302's requirements. Ford, 302 Kan. at 469.
Because Ford had met his threshold burden, the court considered whether a
retrospective competency hearing was feasible and could remedy the procedural error.
Ford, 302 Kan. at 471-77. See also State v. Davis, 281 Kan. 169, 170, 130 P.3d 69(2006) (although the district court ordered a competency evaluation, no evaluation took
place and no hearing was held), overruled in part by Ford, 302 Kan. 455 (2015). Ford
found that, under those circumstances, a retrospective competency hearing was both
feasible and could remedy the error. 302 Kan. at 475.
But Yarbrough's case is unlike Ford's. Yarbrough never moved during his criminal
proceeding to determine his competency to stand trial. The district court thus never
granted such a motion or made the predicate finding "that there is reason to believe that
the defendant is incompetent to stand trial." See K.S.A. 2019 Supp. 22-3302(1). Under
these facts, the statutory directive to suspend the proceedings and conduct a hearing was
not triggered. See State v. Donaldson, 302 Kan. 731, 735, 355 P.3d 689 (2015).
Yarbrough's case is more like Donaldson's, where the district court did not find
reason to believe the defendant was incompetent to stand trial. There, as here, the
defendant argued that the court should have noticed the defendant might be incompetent.
The Kansas Supreme Court rejected that claim:
"In both Davis and Murray, the district court ordered that the competency of the
defendant to stand trial be determined. Statutorily, that means the court had to make the
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predicate finding 'that there is reason to believe that the defendant is incompetent to stand
trial.' K.S.A. 22-3302(1). No such finding was made in this case and, therefore, under the
plain language of the statute, the statutory directive to suspend the proceedings and
conduct a hearing was not triggered.
"Donaldson suggests that a prosecution must be suspended if a presiding judge
should have noticed that a defendant might be incompetent to stand trial. But the statute
requires that the judge make the requisite finding 'that there is reason to believe that the
defendant is incompetent to stand trial' before 'the proceedings shall be suspended and a
hearing conducted.' K.S.A. 22-3302(1). The statutory reference to 'the judge's own
knowledge and observation' simply provides an alternative to a party's request for a
determination of competency, i.e., a judge can proceed to make the requisite finding for a
competency determination without a party's request." Donaldson, 302 Kan. at 735-36..
We reject Yarbrough's claim on that same basis.
K.S.A. 2019 Supp. 22-3302(1) requires the district court to hold a competency
hearing only if a party raised the issue between the filing of the charging document and
the pronouncement of sentence and if the court has reason to believe the defendant is
incompetent. See Stewart, 306 Kan. at 252. Because neither of those requirements is met
here, the district court did not err in not holding a retrospective competency hearing.
Yarbrough failed to present evidence to show he was incompetent at the time of trial.
Yarbrough also raises substantive claims that his trial violated his constitutional
rights since he was incompetent to stand trial. He alleges the denial of two constitutional
rights: (1) his right to effective assistance of counsel and (2) his due process rights. To be
entitled to relief, Yarbrough must establish by a preponderance of the evidence that his
trial counsel or the district court infringed on either of these rights. See K.S.A. 2019
Supp. 60-1507(b). The district court considered both claims but denied them.
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Due process
Yarbrough contends the district court erred in finding that he "failed to establish
any evidence of his incompetency at the time of trial." Yarbrough claims that he was tried
and convicted while, in fact, incompetent, as the evidence of his low IQ showed.
Evidence at the K.S.A. 60-1507 evidentiary hearing
At the evidentiary hearing on Yarbrough's 2017 motion, Yarbrough presented an
expert who testified that his IQ when tested in 2017 was 57 and that he was diagnosed as
intellectually disabled. But as the district court correctly found, our courts have never
declared that a defendant's low IQ alone renders a defendant incompetent to stand trial:
"Without doubt, Stewart has some level of cognitive impairment because of his
low IQ. But we have never declared that a defendant's low IQ, standing alone, renders a
person incompetent to stand trial. Cf. Atkins v. Virginia, 536 U.S. 304, 318, 122 S. Ct.
2242, 153 L. Ed. 2d 335 (2002) ('Mentally retarded persons frequently know the
difference between right and wrong and are competent to stand trial.'). Competency to
stand trial addresses the defendant's ability to understand the charges and proceedings
and/or assist his or her counsel in defending against those charges. See Barnes, 293 Kan.
at 256." Stewart, 306 Kan. at 259-60.
Yarbrough's expert witness did not suggest that he may be incompetent to stand
trial. Rather, she admitted she could not comment on his competency, as the test she
administered to him was not a competency evaluation, she was not trained in them, and it
was not her area.
The district court also found it curious that Yarbrough did not have his trial
attorney testify at the hearing. Yarbrough called no one to testify who was present during
trial. Yet persons who saw a defendant's demeanor, responses to questions, and general
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comport at trial would likely be valuable witnesses to prove the defendant's lack of
competency at trial.
But our caselaw holds that evidence of a low IQ, standing alone, does not render a
person incompetent to stand trial. Stewart, 306 Kan. at 259-60. Still, in an abundance of
caution, we review the other evidence of record to see what it shows about Yarbrough's
ability to understand the nature and purpose of the proceedings and to assist in his
defense. See K.S.A. 22-3301(1).
Yarbrough's testimony at trial
Yarbrough took the stand at trial and testified in his own defense. His testimony
does not reflect any confusion or disorientation. Rather, his trial testimony shows that he
understood what was happening, could process information, and was able to make
rational decisions about it. His answers were coherent and responsive. He never requested
clarification or the repetition of a question. His testimony correlates to and tries to refute
the testimony against him. He denied that he ever had any sexual contact with the victim
and stated that he always slept in a separate room when she and her younger sister stayed
over at the house. He stated that the victim had some attitude problems toward him but
that they generally got along. Yarbrough testified that he was hurt by her allegations and
did not understand why she would make them.
The following exchange, taken from Yarbrough's direct examination, is typical of
his testimony.
"[ZIMMERMAN]: All right. The night that—let's go to the 18th of February of
2011, the night that the police came over to your house, do you recall being awakened by
your wife?
"[YARBROUGH]: Yes, she did.
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"[ZIMMERMAN]: And what did she—what did she tell you?
"[YARBROUGH]: She said she was in a panicky mood. She said, Dave, we
need to get you up. Honey, they're threatening that Michael called and says you're in
danger, you need to get up. I said, what do you mean danger? I mean I just woke up and
she said they're on their way down here to kill you because you was in there raping [the
victim]. And I was still in the other bedroom, the kids' bedroom where I fell asleep. I was
falling asleep, they woke me up and that's when they told me this was going on and [the
victim] and [her younger sister] was clear in the other bedroom.
"[ZIMMERMAN]: I'm sorry?
"[YARBROUGH]: They were in Grace's [his wife's] bedroom. I'll put it like
Gracie's bedroom and my bedroom.
"[ZIMMERMAN]: Both [the younger sister] and [the victim] were in bed with
Grace?
"[YARBROUGH]: Yes. They were both in there and I was asleep in the other
room and I got that rude awakening from my wife telling me the situation that they were
coming over to kill me out of my own house."
Our review of Yarbrough's testimony at trial shows nothing either about its
manner or its content that may have put his attorney or the court on notice that he did not
understand the proceedings or could not assist in his defense.
Yarbrough's conduct during posttrial proceedings
Other evidence of Yarbrough's conduct during the case confirms that conclusion.
He spoke coherently to the court during sentencing, asserting that the victim had lied
about the abuse, then he asked for a "little lighter sentence" and did not allege he had not
understood the trial proceedings. His multiple motions and letters that he signed, if not
authored, are articulate and rational. For example, his 2015 letter to his first appointed
counsel for his K.S.A. 60-1507 proceeding shows his understanding of the facts of his
case and the ongoing procedures. It states in part:
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"It's 3-fold: The Judge failed to declare a mistrial due to Zimmerman's
ineffective Assistance, Trial Counsel was ineffective for not filing any motions which
was ineffective assistance, and Appellate Attorney Christina Kerns was ineffective at not
catching this and arguing it in her Direct Appeal Brief.
"All the other arguments in the 1507 are pretty much self explan[a]tory, I cited
where to find it in the transcripts, and an evidentiary hearing will subp[oe]na the witness
to reinforce what they said. If there's an argument you need more clarification on please
let me know! There was no real evidence to convict me of this crime, and as you just read
about Zimmerman. he was ineffective!
"Please let me know if you need anymore [sic] information. and once again,
thank you for being my Attorney, and thank you for your time and attention!"
Nothing in Yarbrough's acts or statements during or after the trial shows that he
suffered from any sort of mental incapacity or problem that affected his ability to make
decisions, to understand their consequences, or to assist in his defense. The record does
not reflect any concern expressed by Yarbrough or anyone else at trial that he may be
incompetent. And Yarbrough's acts and statements do not suggest that he was unable to
understand the nature and purpose of the proceedings or assist in his defense. See K.S.A.
22-3301(1). Instead, the record shows that throughout the proceedings Yarbrough was
actively engaged, showed no confusion about what was happening, and assisted in his
defense.
Yarbrough thus showed no reason for anyone to doubt his competency at the time
of trial. We thus affirm the district court's denial of Yarbrough's due process claim.
Ineffective assistance of counsel
Lastly, we address Yarbrough's claim that his trial counsel was ineffective because
he failed to investigate or argue that Yarbrough was incompetent to stand trial or be
sentenced.
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"To prevail on a claim of ineffective assistance of trial counsel, a criminal
defendant must establish (1) that the performance of defense counsel was deficient under
the totality of the circumstances and (2) prejudice." State v. Salary, 309 Kan. 479, 483,
437 P.3d 953 (2019). In considering deficiency, we recognize a strong presumption that
counsel rendered adequate assistance and made all significant decisions in the exercise of
reasonable professional judgment. State v. Kelly, 298 Kan. 965, 970, 318 P.3d 987(2014). To establish prejudice, the defendant must show a reasonable probability that, but
for counsel's deficient performance, the outcome of the proceeding would have been
different, with a reasonable probability—that is, a probability sufficient to undermine
confidence in the outcome. State v. Sprague, 303 Kan. 418, 426, 362 P.3d 828 (2015).
We first examine whether Yarbrough showed that his trial counsel's performance
was deficient. A defendant alleging ineffective assistance of counsel "'must make more
than conclusory contentions and must state an evidentiary basis in support of the claims
or an evidentiary basis must appear in the record.'" Holmes v. State, 292 Kan. 271, 274,
252 P.3d 573 (2011). Yarbrough, by relying only on his low IQ, fails to meet that
requirement.
Still, we agree that trial counsel's failure to request a competency hearing where
evidence raises a doubt about a movant's competence to stand trial may constitute
ineffective assistance of counsel:
"The Constitution prohibits a court from trying defendants who are mentally
incompetent. See Pate v. Robinson, 383 U.S. 375, 378, 86 S. Ct. 836, 15 L. Ed. 2d 815(1966). Of all the actors in a trial, defense counsel has the most intimate association with
the defendant. Therefore, the defendant's lawyer is not only allowed to raise the
competency issue, but, because of the importance of the prohibition on trying those who
cannot understand proceedings against them, [he or] she has a professional duty to do so
when appropriate. See, e.g., Vogt v. United States, 88 F.3d 587, 592 (8th Cir.1996) ('"The
failure of trial counsel to request a competency hearing where there was evidence raising
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a substantial doubt about a petitioner's competence to stand trial may constitute
ineffective assistance of counsel."') (quoting Speedy v. Wyrick, 702 F.2d 723, 726 (8th
Cir.1983)). In fact, defendants often contend in collateral proceedings that their trial
counsel rendered ineffective assistance by failing to request a competency hearing. See,
e.g., Clanton, 826 F.2d at 1357-58." United States v. Boigegrain, 155 F.3d 1181, 1188
(10th Cir. 1998).
We have summarized, above, the record showing that no evidence raised a doubt about
the movant's competence to stand trial. We summarize, below, the only other evidence
we have about what Yarbrough's trial attorney knew.
Zimmerman's earlier testimony
Although Yarbrough did not call his trial counsel at his 2017 hearing on the
competency issue, his trial counsel, Zimmerman, did testify at Yarbrough's earlier
hearing in 2012, closer to the time of trial. Yarbrough had moved for a new trial based on
alleged ineffective assistance of counsel on grounds unrelated to Yarbrough's alleged
incompetency. There, Zimmerman testified:
• Yarbrough had extensively discussed the case with him;
• Yarbrough had reviewed the District Attorney's file and the video of the
victim's interview;
• Yarbrough had discussed strategy with him about cross-examining the
victim after seeing the video of her interview;
• Yarbrough had given him information that Zimmerman used in cross-
examining the victim;
• Yarbrough had told him about the sleeping arrangements when the children
slept at his house;
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• Yarbrough had suggested that the victim undergo a mental examination;
and
• Yarbrough had asked why there was not any DNA after Zimmerman
reviewed the victim's medical report with him.
Zimmerman represented Yarbrough for around five months and during his jury
trial. He visited Yarbrough in jail at least one or two weekends before trial to help him
prepare because Yarbrough wanted to testify at trial. Zimmerman also visited with him
one night during trial, reviewing the evidence and preparing for the next day. Yet nothing
in Zimmerman's testimony shows that he had a reason to think Yarbrough was
incompetent.
We need not decide whether to apply a "good faith doubt" or some other standard
here. See Boigegrain, 155 F.3d at 1188 (applying the ABA's "good faith doubt" standard,
ABA Criminal Justice Standard 7-4.3[c], to ineffective assistance of counsel claim); State
v. Davis, 277 Kan. 309, 319, 85 P.3d 1164 (2004) (finding attorney ineffective who
admitted that he had "reason to doubt" the defendant's competency prior to trial); cf.
K.S.A. 22-3302(1) (stating a district court has a duty to inquire into a defendant's
competency when the court finds "reason to believe" that the defendant is incompetent to
stand trial); Foster, 290 Kan. at 704 (finding that the court must hold a competency
hearing when the evidence raises a "bona fide doubt" as to defendant's competency);.
Under any of those standards, as our review of the record above shows, Yarbrough
failed to present evidence that his trial counsel had any reason to doubt that Yarbrough
was competent. Here, as in Adams, there are simply no "red flags" in the record to
suggest that his counsel should have investigated his mental health. See State v. Adams,
310 Kan. 569, 579-80, 465 P.3d 176, 182 (2020) (finding that because the record showed
the defendant was engaged in a rational, thoughtful, knowing way throughout the
16
proceedings, his counsel had no reason to investigate his mental health). Counsel acted
reasonably, given the circumstances.
Finding no deficient performance by counsel, we need not reach the question of
prejudice.
Affirmed.
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